Jersey Unreported Judgments

ROYAL COURT

(Samedi Division)

Decision given: 15 May 1998

Reasoned Judgment handed down: 8 June 1998

Before: Sir Philip Bailhache, Bailiff,

and

Jurats Gruchy, Le Ruez, Herbert,

de Veulle, Quérée, Le Brocq

Tibbo, and Bullen

In the matter of the Representation of the Bâtonnier

re: Advocate Philip Cowan Sinel ( the Respondent), alleging

professional misconduct on the part of the Respondent.

Advocate AJ Olsen for the Bâtonnier

Advocate DF Le Quesne for the Respondent

HM’s AG, convened

JUDGMENT

THE BAILIFF: On 14 May 1998, the Superior Number received a Representation of the Bâtonnier, Advocate Peter de Carteret Mourant, drawing its attention to alleged misconduct on the part of a member of the Bar. The Court heard submissions from counsel on behalf of the Bâtonnier and the advocate in question, Philip Cowan Sinel, and from the Attorney General. Having considered those submissions the Court announced that it would reprimand Advocate Sinel for his misconduct and would give its reasons at a later date. This we now proceed to do.

The facts are not in dispute. On the 6 February 1998, Advocate Sinel wrote to the Bâtonnier a letter, the first paragraph of which was in the following terms:-

The remainder of the letter sought to justify that decision. The Bâtonnier replied by letter of 10 February 1998, declining to comment in detail but noting that Advocate Sinel would continue to honour the terms of his oath.

On 19 February 1998, a legal aid certificate was issued to Advocate Sinel directing him to attend to the affairs of Mrs H who required assistance in the matter of matrimonial proceedings. On 20 February, Advocate Sinel wrote to the Acting Bâtonnier returning the certificate and stating that he would no longer accept legal aid clients referred to him. On 23 February the Bâtonnier wrote to Advocate Sinel advising him that the ground which he had given for returning the certificate was unacceptable. Advocate Sinel was directed to confirm that he would deal with the matter or to explain why he considered that he should be excused.

On 3 March 1998, Advocate Sinel wrote to the Acting Bâtonnier returning a legal aid certificate directing him to attend to the affairs of Mr M, a minor who was due to appear in the Youth Court. On 6 March, the Bâtonnier wrote to Advocate Sinel warning him that he was in clear breach of the terms of his oath and issuing "clear and unequivocal directions to deal with the case". By letters of 9 and 11 March, 1998, Advocate Sinel responded and sought to justify his refusal to represent Mr M. The letter of 11 March contained the following passage:-

On 20 March the Assistant Magistrate Mr Trott wrote to the Bailiff reporting that on 19 March a Mr S had appeared before him on serious motoring charges. Advocate Sinel had been detailed to represent Mr S under the legal aid scheme but had failed to appear. On 24 March the Bailiff referred that letter to the Bâtonnier. On 25 March Mr M appeared in the Youth Court. Advocate Sinel was absent and the case was accordingly adjourned. On 27 March the Bâtonniers Representation was presented to the Inferior Number. The Inferior Number ordered service of the Representation on Advocate Sinel and the Attorney General who were convened for 3 April 1998. On that day the matter was referred to the Superior Number and the parties were directed to file outline contentions within a given time scale.

At the hearing before us Mr Le Quesne, who appeared for Advocate Sinel, did not seek to argue that his client was not in breach of his oath by failing to represent Mr S and Mr M before the courts. In view of that concession it is unnecessary for the Court to refer to the authorities laid before it by counsel for the Bâtonnier and by the Attorney General. Suffice it to state that the Court is entirely satisfied that advocates are bound by their oath to represent "veuves, pauvres, orphelins et personnes indéfendues". The Bar has, by unanimous resolution of 20th August 1904, determined that that obligation should be undertaken by advocates of less than fifteen years standing à tour de rôle. That resolution remains in force and has been acted upon for over ninety years. Advocates of less than fifteen years standing are therefore in general obliged as a matter of law to act upon the directions of the Bâtonnier to represent a person under the legal aid scheme. It is necessary to qualify the obligation because the Bâtonnier must of course act properly and fairly in the administration of the legal aid scheme; if he fails to do so, his directions would be open to challenge by way of judicial review. We should also mention that the Islands obligations under the European Convention on Human Rights may be relevant to the extent of an advocates obligation in relation to a particular case. However the Convention has not yet been incorporated into Jerseys domestic law and no more need be said at this stage.

Counsel having admitted that Advocate Sinel was in breach of his oath, the Court considered what penalty, if any, should be imposed. Mr Le Quesne offered a fulsome apology on behalf of Advocate Sinel and an undertaking in future to comply with the reasonable and proper directions of the Bâtonnier to represent persons under the legal aid scheme. In mitigation Mr Le Quesne submitted that although his client had initially refused to act in three cases, he had subsequently agreed to represent two of those individuals and had done so. It was suggested that Advocate Sinel had taken his stance because he thought that the existing legal aid system was unfair, although he now accepted that he should not have acted unilaterally. He had been persuaded by observations of the Legal Practice Committee chaired by Sir Godfray Le Quesne QC that compliance with the legal aid scheme was voluntary. The passage in question is at paragraph 4.1 of the Report of that Committee which provides:-

Mr Le Quesne accepted that that passage is ambiguous but it was the basis, he submitted, of his clients decision to withdraw from the scheme. Counsel stated that Advocate Sinel had until now faithfully performed his obligations under the legal aid scheme. In particular he had represented a Mr West in litigation which had lasted for some five years. At the end of the day he had received payment, but that representation was nevertheless in the best traditions of the Bar. Advocate Sinel had also represented a politician on a charitable basis even though he had been refused legal aid. Mr Le Quesne submitted that the Court should accept his client’s apology as sufficient to bring the matter to a conclusion.

The Court gave careful consideration to all these matters urged most ably by Mr Le Quesne on behalf of his client. In our judgment the misconduct was however accurately described by the Attorney General as a serious breach of professional duty. Two clients whom he had been directed to represent were abandoned and left to fend for themselves in court. This was a particularly grave dereliction of duty in the case of Mr M who was a seventeen year old youth at risk of a custodial sentence. No notice was given to the Bâtonnier of his intention to withdraw from the legal aid scheme in that the letter was received on the very day when the withdrawal purported to take effect. Instead of discussing his concerns with the Bâtonnier Advocate Sinel chose to withdraw his services summarily if not peremptorily. It was a grossly unprofessional way of reacting. The Court was not impressed by the explanation tendered to the Attorney General in a letter of 11 May 1998 that Advocate Sinels decision "was not taken lightly and it was undertaken after due research". Mr Le Quesne conceded that the "due research" amounted to no more than a consideration of the ambiguous passage from the Legal Practice Committees Report cited above. No legal authorities were apparently consulted. The Court also deplores the threatening tone of the letter of 11 March written by Advocate Sinel to the Bâtonnier. To threaten the Bâtonnier, who was doing no more than his duty, with an action for considerable damages was quite improper. In our judgment the Attorney General accurately encapsulated the actions of Advocate Sinel as having been taken (1) without notice, (2) without adequate research, (3) without any regard for the clients whom he had been directed to represent, and (4) without any regard for colleagues or for the administration of justice generally.

Having balanced all the arguments advanced by counsel the Court unanimously decided that Advocate Sinel should be reprimanded for serious breaches of professional duty.

No Authorities